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DUI expert: Cabrera shouldn't do time

Jon Paul Morosi

Jon Paul Morosi is a National MLB Writer for FOXSports.com. He previously covered baseball for the Detroit Free Press and Seattle Post-Intelligencer. He began his journalism career at the Bay City Times in his native Michigan. Follow him on Twitter.

A leading criminal defense attorney in Fort Pierce, Fla., said Thursday that Tigers star Miguel Cabrera is unlikely to receive jail time in connection with the three charges pending against him in St. Lucie County.

“I would be surprised if he served jail time,” said Michael Kessler, an expert on cases involving charges of driving under the influence. “It’s not because he’s a baseball star. I would be surprised if anyone on a first arrest for DUI and resisting an officer got jail time. I don’t think he would be getting any special treatment if he were to settle the case and not go to jail.”

Cabrera, 27, was arrested late Wednesday night and charged with DUI, along with two counts of resisting arrest. Resisting arrest is considered a first-degree misdemeanor that could carry jail time of up to one year. Meanwhile, first-time DUI offenders are punished by a fine between $500 and $1,000, along with the possibility of imprisonment for up to six months.

“In a plain reading of the statute, the resisting-arrest charge carries a higher penalty,” Kessler said. “But in practice, it doesn’t work that way.”

Kessler said first-time DUI offenders generally receive a six-month license suspension, community service, and an obligation to attend what is commonly called “DUI school.” Cabrera may still be able to maintain some driving privileges — even if he’s found guilty — through use of a restricted permit. But his case is complicated somewhat by the fact that he refused a breathalyzer test.

Cabrera has had repeated instances of alcohol abuse. Whether he will enter inpatient treatment remains an open question. However, it seems unlikely that the criminal case against him will require him to be away from the team during the season.

Even if the case goes to trial, Kessler said, Cabrera should be able to have those proceedings delayed until after the upcoming season is over.

“If he doesn’t want to fight the charge, he might never have to come back to Fort Pierce,” Kessler said. “And if he pleads not guilty, any competent lawyer ought to be able to get him excused until the point of trial. That’s usually three to six months after the arrest, and it wouldn’t be unusual to take longer than that. An experienced lawyer like myself wouldn’t have much trouble in getting that pushed back until October or November.”

It’s not clear from the police report if officers came upon Cabrera’s car when it was parked or in motion. The report noted smoke coming from the engine, and at least one officer noticed him drinking scotch on the side of the road.

“I’m not convinced that he’s guilty,” Kessler said. “I think it’s a case I could win. I’ve won tougher cases. I don’t think I’m the only guy in town who could win the case.

“It’s a crime to be drinking scotch in public in front of the police — but it’s not drunk driving. To convict someone of DUI, you have to show that he was operating the vehicle over the legal limit. If your car breaks down, you’re waiting for help on the side of the road, and you get hammered, you’re not guilty of DUI.

“I wouldn’t want my sons doing that. You could pose a danger to yourself by doing that if your car is broken down on the side of the road. But it’s not DUI.”

Ironically, Cabrera is the second high-profile case to appear on the docket of Judge Clifford Barnes this month. David Cassidy, the former "Partridge Family" star, pleaded no contest to a DUI charge this week in Fort Pierce. He received a fine, license suspension, and one year of probation — but no jail time.

“Judge Barnes won’t give him any breaks because he’s a celebrity, and he won’t punish him for it, either,” Kessler said of Cabrera. “He will give him the same rights as he would give anybody else."

Major League Baseball does not have a conduct policy that dictates discipline for players charged with crimes. At this point, it appears highly unlikely that Cabrera will be suspended by MLB or the Tigers.

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